SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0111
Appellant
| CHASE CLARK |
| v |
| Respondent |
| THE QUEEN |
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| JUDGES: | MAXWELL P and T FORREST JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 19 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 125 |
| JUDGMENT APPEALED FROM: | [2019] VCC 104 (Judge Cahill) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Home invasion – Theft – Intentionally damage property – Appellant sentenced to 6 years’ imprisonment, 3 years and 9 months non-parole period – Co-offender sentenced to 3 years and 9 months’ imprisonment, 1 year and 9 months non-parole period – Prosecutor submitted on plea appellant and co-offender should have same head sentence – Whether open to differentiate between appellant and co-offender based on different roles and criminal records – Appeal dismissed.
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| REPRESENTATION: | Counsel | Solicitors |
| For the Appellant | Ms E H Ruddle | Emma Turnbull Lawyers |
| For the Respondent | Mr G M Hughan | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
T FORREST JA:
Summary
The appellant and a co-offender, Jessica May (‘May’), entered a house in the early hours of the morning, with intent to steal. The appellant was armed with a sawn-off shotgun. After stealing a number of items, the offenders forced open the automatic gates to the property, damaging them in the process, and attempted to take a motor car.
They each pleaded guilty to a series of offences, the most serious being home invasion under s 77A of the Crimes Act 1958, which carries a maximum penalty of 25 years’ imprisonment. The appellant was sentenced to a total effective sentence of 6 years’ imprisonment, with a non-parole period of 3 years and 9 months. May was sentenced to a total effective sentence of 3 years and 9 months’ imprisonment, with a non-parole period of 1 year and 9 months.
The appellant was granted leave to appeal against his sentence on a single ground, namely, that the sentencing differential between his sentence and that imposed on May infringed the principle of parity. For reasons which follow, we are satisfied that there was no breach of parity. That is, it was reasonably open to the sentencing judge to differentiate between the appellant and May in the way he did, having regard to the material differences between them — as to their respective roles in the offending and their respective criminal records.
Factual and procedural background[1]
[1]Paragraphs 4–17 are based on the reasons given by Kyrou JA on 18 September 2019 for granting leave to appeal.
The appellant pleaded guilty to the charges set out in the below table and, on 1 February 2019, he was sentenced as follows:[2]
[2]DPP v Clark [2019] VCC 104 (‘Reasons’).
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Home invasion [s 77A Crimes Act 1958] | 25 years | 5 years, 6 months | Base |
| 2 | Intentionally damage property [s 197(1) Crimes Act 1958] | 10 years | 6 months | 2 months |
| 3 | Theft (property from home) |
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- AGLC
- Clark v The Queen [2020] VSCA 125
- Case
- [2020] VSCA 125
- Decision Date
CaseChat Overview and Summary
The court considered whether it was appropriate to differentiate between Clark and his co-offender based on their respective roles in the crime and their criminal records. The court noted that while the prosecutor argued for parity, the sentencing judge had considered the varying roles and criminal histories of the offenders. The court found that the sentencing judge had appropriately exercised their discretion in imposing different sentences, taking into account the mitigating and aggravating factors unique to each offender. The appeal was dismissed as the court upheld the sentencing judge's decision.
The High Court confirmed that differences in roles and criminal histories could justify varying sentences even when the core offences are similar. The court emphasised that while considerations of parity are important, they are not determinative in every case. The differing sentences were thus affirmed, and the appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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